In UK, medieval tactics may save modern media

The long-awaited
reform of libel laws in the United Kingdom skirted with collapse this week due
to political infighting in the aftermath of the Leveson report on
media ethics--the public inquiry
that resulted from the News Corp. phone-hacking scandal. With that disaster
narrowly averted, attention has turned to what may turn out to be a very
British solution to the question of how to shape the post-Leveson world.

An amendment to the Defamation
Bill tabled by a member of the House of Lords from the opposition Labour
party sought to establish by law an arbitration service, paid for by
publishers, for members of the public wronged by the press. The proposal,
passed at the House of Lords by 272 votes to 141 earlier this month, was an
unexpected parliamentary defeat for the British government. It sought to allow
courts assessing damages in defamation cases to take into account whether the
outlet had submitted the story to an external regulator prior to publication.
Proponents of the amendment argued the need to set "exemplary damages" for
newspapers trespassing on, or unwilling to join, the press regulation framework--but
this would have gone further, establishing a form of prior censorship heavily
criticized by press freedom advocates.

Judge Brian Leveson
was right when he ended the presentation of his report in November by saying,
"The ball now moves back into the politicians' court." Political courtesans
have been playing their game since. Leveson's proposed creation of an independent regulatory body backed by statute instead of the existing--and severely flawed,
as the hacking scandal showed--voluntary, self-regulating mechanism had faced
criticism from the press freedom community. "A media
regulatory body anchored by statute cannot be described as voluntary," CPJ
Executive Director, Joel Simon said
in November. David Cameron, the Conservative British prime minister, equally
rejected the idea of a regulatory solution. For the past several weeks, his
government has led discussions among the political parties on alternative,
non-statutory models to implement most, if not all, of Leveson's
recommendations. Apparently, the
arbitration amendment was put forward by advocates of a statute-based
mechanism, in order to circumvent those talks between the ruling Conservative
and Liberal-Democrat parties and Labour.

The government threatened to withdraw
the entire legislative package if the arbitration amendment, initially put forward by
Lord Puttnam, a Labour-leaning film director, was to be definitely passed by
the high chamber. "If they [the Lords] fail to expunge
the amendments, the revised [Defamation] Bill will create in the U.K. a version
of prior restraint--censorship before publication--that has not existed in this
country for 300 years and that is explicitly outlawed by the First Amendment to
the U.S. Constitution and the European Convention on Human Rights," Tim
Luckhurst, a professor of journalism at the University of Kent, wrote in the Daily
Telegraph. The amendment was finally dropped Monday,
and the Defamation Bill received an unopposed third and final reading in the
House of Lords before going, without a censorship mechanism, to the House of
Commons for a final vote. Hence the impetus is back with the party talks, where a sophisticated formula to establish a
stronger regulatory framework for the press seems to be gathering consensus.

It was described as a
"third way" when the Daily
Telegraph disclosed Cameron's idea in December: it includes a role for Queen
Elizabeth and it dates back a thousand years. The government wants to establish
a new
independent press watchdog by royal charter, an archaic legal mechanism previously
used to set up the BBC, the Bank of England, the Royal Opera House and the
University of Cambridge. Under this very British system, the Queen
must formally accept the establishment of each institution in a document which
is written on vellum, sealed, and laid in Parliament. The royal charter
originated in medieval Europe and was introduced in the U.K. in 1066. It has
been used, according to the Daily
Telegraph's media specialist, nearly a thousand times, mostly to found
cities and universities. The future of the British press thus lies in a
medieval royal parchment. For beginners it might sound like a counterintuitive route
to a fresh start. But it makes sense. British sense, at least.

The royal charter mechanism is considered the ultimate
guarantee for the BBC's independence from political interference. It is
reviewed every 10 years, and any modification requires a much broader party
consensus than usual parliamentary rules would guarantee. The new charter,
according to its supporters, would isolate the press regulator from both
political interference and the industry's self-preservation instincts. The
control of the former regulator, the Press Complaints Commission, by serving
editors and publishers was considered by the Leveson report as a key
explanation for its inability to prevent the hacking scandal. Liberal and Labour
negotiators initially only reluctantly accepted the royal charter mechanism as
a basis for discussion, but they have recently welcomed a draft document
presented by Cameron's Culture Secretary, Maria Miller. "It
would see the toughest press regulation this country has ever seen without
compromising press freedom," she said. The royal charter would establish a governing
committee of five to nine well-respected, independent figures who would appoint
and oversee the members of the new regulatory body.

Though this approach is slowly moving forward, it is drawing a heavy exchange of fire between the media
industry, on the one hand, and hacking victims, on the other. Many victims of press excesses have insisted that
acting members of the industry should not be incorporated in the new
institution, but Conservative ministers seem eager to accommodate the press
barons and are ready to include "independent members and serving editors" in
the new body, which would be responsible of drafting a new press code to
regulate a complaints and compensation mechanism. According to recent press
reports, the charter as currently drafted also partly rejects the Leveson
recommendation that the new regulator should investigate complaints even coming
from groups not directly involved or named in articles--another "concession" to
the industry that has infuriated victim groups.

Even among Tory
members of Parliament there is still a degree of skepticism, but leading MPs have recently signaled readiness to discuss a non-statutory
solution. Last
week George Eustice, one of the leaders of the 75 Conservative MPs advocating for
tighter press regulation, wrote in the Guardian
that the compromise proposal "represents a basis on which we can all move
forward." Both the Labour Party and the Liberals have committed
themselves to guaranteeing a strong post-Leveson regulatory framework, and they
will be closely watched by victim organizations, who are still demanding a
statutory-based solution. Media companies have strenuously rejected the idea of
a new press law and are lobbying the government to keep as much control of the
process as possible.

Meanwhile, public confidence in the press after the
hacking scandal is at historic lows. According to figures
released in September by Which?, a consumer advocacy organization, only 7% of
consumers have trust in journalists, who share the bottom of the table with
politicians and score even worse than bankers (trusted by 11%). As George
Eustice wrote, "One of the obstacles to an agreement is a lack
of confidence in the industry's intentions."

Borja Bergareche is a Spanish journalist based in London and a CPJ European correspondent.